KATZ'S ON "SELP-HELP"
Daniel M. Katz (VSB # 18022)
KATZ & RANZMAN, P.C.
1015 18th Street, N.W., Suite 801
Washington, D.C. 20036
(202) 659-4656 (Telephone)
(202) 659-3145 (Facsimile)
Attorney for the Communications Workers
The reference to “work slow-downs or other service disruptions,â€
moreover, apparently constitutes an attempt to interfere with CWA’s right to engage in self-help
guaranteed under the RLA. As we demonstrate, infra, should the Court impose contractual
modifications to which CWA has not agreed, CWA would be free, under the RLA, to engage in
self-help and strike. The Norris- LaGuardia Act, 29 U.S.C. § 101, forbids the issuance of
injunctions against such lawful strikes. The Company’s proposal relating to outsourcing appears
designed to penalize the CWA and its members for exercising their right to engage in lawful
strike activities. Any court order embodying such a provision would therefore run afoul of the
Norris-LaGuardia Act.
Under the NLRA, unions retain the right to resort to self- help in support of their
bargaining positions upon bankruptcy court modification of their collective bargaining contracts
pursuant to § 1113. Crowe & Assoc., Inc. v. Bricklayers Local No. 2, 713 F.2d 211 (6th Cir.
1983) (vacating injunction against strike called to back up union’s demand that debtor pay
12 It is noteworthy that the carrier never even raised the issue in the hotly contested Continental Airlines
bankruptcy, in which all of the carrier’s unionized work groups went on strike when the airline repudiated its
collective bargaining contracts. See In re Continental Airlines Corp., 901 F.2d 1259 (5th Cir. 1990); ALPA v.
O’Neill, 499 U.S. 65 (1991). Nor did the courts issue an injunction against the pilots of the bankrupt Eastern
Airlines for engaging in a sympathy strike. Although the pilots’ contract was not rejected pursuant to Section 1113,
the strike was held lawful. Eastern Airlines, Inc. v. ALPA, 1989 WL 205343 (11th Cir.); IAM v. Eastern Airlines,
Inc., 121 B.R. 428, 431 n. 3 (S.D.N.Y. 1990), affirmed, 923 F.2d 26, 27 (2d Cir. 1991).
33
money into union pension fund); Briggs Transp. Co. v. Teamsters, 739 F.2d 341 (8th Cir.), cert.
denied, 469 U.S. 917 (1984) (strike to protest modification of collective bargaining agreement is
labor dispute that cannot be enjoined due to Norris LaGuardia Act, 29 U.S.C. § 101); In re
Petrusch, 667 F.2d 297 (2d Cir. 1981); In re Third Ave. Transit Corp. v. Quill, 192 F.2d 971, 973
(2d Cir. 1951); In re Kentucky Truck Sales, Inc., 52 B.R. 797, 806 (Bankr. W.D. Ky. 1985). See
also Teamsters v. IML Freight, Inc., 789 F.2d 1460 (10th Cir. 1986) (reversing and remanding
order approving rejection because bankruptcy court did not consider, inter alia, the likelihood
that the employees would strike). The Company does not contend otherwise, instead ignoring
the issue on the apparent assumption that airline employees should have fewer rights to respond
to the abrogation or modification of their collective bargaining contracts under § 1113 than
trucking or manufacturing workers.
To be sure, the RLA is a statute designed to deter premature resort by employers or
unions to self- help, and to encourage the parties to resolve their bargaining impasses by utilizing
mediation and voluntary arbitration, as opposed to strikes and lock-outs. So, too, however, is the
NLRA, which asserts as its first finding, in 29 U.S.C. § 151: “The denial by some employers of
the right of employees to organize and the refusal by some employers to accept the procedure of
collective bargaining lead to strikes and other forms of industrial strife or unrest, which have the
intent or the necessary effect of burdening or obstructing commerce. . . .†Akin to the findings
and declarations of policy in the RLA, the NLRA further states as a declaration of national labor
policy in 29 U.S.C. § 171 a and B that:
(a) sound and stable industrial peace and the advancement of the general
welfare, health, and safety of the Nation and of the best interests of employers and
employees can most satisfactorily be secured by the settlement of issues between
employers and employees through the processes of conference and collective
bargaining between employers and the representatives of their employees;
34
b- the settlement of issues between employers and employees through
collective bargaining may be advanced by making available full and adequate
governmental facilities for conciliation, mediation, and voluntary arbitration to aid
and encourage employers and the representatives of their employees to reach and
maintain agreements concerning rates of pay, hours, and working conditions, and
to make all reasonable efforts to settle their differences by mutual agreement
reached through conferences and collective bargaining or by such methods as may
be provided for in any applicable agreement for the settlement of disputes. . . .
Thus, the RLA and the NLRA do not differ significantly on the primary point on which we
expect the Company to rely.
What distinguishes the RLA from the NLRA in this regard is not the overall aim of the
legislation, but rather the means by which that aim is realized. Under the NLRA, by and large,
the obligation of a union not to strike, and the obligation of an employer not to resort to self-help,
is created by the parties' contract, as interpreted in light of the aims of the statute. See Mastro
Plastics Corp. v. National Labor Relations Board, 350 U.S. 270, 280-83 (1956). Under the
RLA, the restriction against self- help dur ing the term of a contract is written expressly into the
statute. At the same time, the RLA contemplates that, once the parties have entered into a
collective bargaining relationship, that relationship continues indefinitely; that is, RLA contracts,
unlike NLRA contracts, do not have fixed terms, but rather come up for amendment periodically,
and remain in effect until amended. See, e.g., Bhd. of Ry. and S.S. Clerks v. Florida East Coast
Ry. Co., 384 U.S. 238 (1966) (contract terms that the employer did not specifically seek to
modify during collective bargaining negotiations continue in effect); Trans World Airlines v.
Indep. Fed’n of Flight Attendants, 809 F.2d 483 (8th Cir. 1987) (same), aff’d mem. by an equally
divided Court, 485 U.S. 175 (1988). And, it is against this backdrop that the RLA’s regulation of
employer and union self-help operate.
35
Before unilaterally changing the terms and conditions of employment described in a
collective bargaining agreement, a carrier must follow the detailed procedures specified in the
RLA for amending such an agreement. Section 2, Seventh of the RLA, 45 U.S.C. § 152,
Seventh, provides: “No carrier, its officers or age nts shall change the rates of pay, rules, or
working conditions of its employees, as a class as embodied in agreements except in the manner
prescribed in such agreements or in section 156 of this title.†See, e.g., RLA Section 6, 45
U.S.C. § 156, concerning written notice of the change. See also Brotherhood of Railroad
Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 378 (1969) (summarizing the Act’s major
dispute resolution procedures). As the Supreme Court held in Brotherhood of Railway and
Steamship Clerks v. Florida East Coast Ry., 384 U.S. 238, 247 (1966), “The processes of
bargaining and mediation called for by the Act would indeed become a sham if a carrier could
unilaterally achieve what the Act requires be done by the other orderly procedures.â€
The significance of the RLA’s major dispute resolution procedures for present purposes
is this: The statute contemplates that a CBA, once entered into, does not expire on its own
terms, thus provid ing a trade-off between the right to self- help, on the one hand, and the stability
afforded by the continuing agreement, on the other. The RLA endeavors to secure this balance
by mandating a series of specified procedures before permitting an employer unilaterally to
impose changed terms and conditions on its employees or allowing a union to call a strike in
order to pressure an employer to agree to terms and conditions more favorable to employees.
Section 1113 disrupts this regime by allowing an employer, with Bankrup tcy Court approval, to
reject or modify a CBA without regard to RLA procedures. Thus, § 1113, like the RLA itself,
creates a process—albeit a comparatively accelerated process—for arriving at an impasse and
allowing employer self- help. There is accordingly only one logical way to reconcile the RLA
36
and the Bankruptcy Code, and to prevent the unfair consequences of permitting only one
collective bargaining party to engage in self- help in support of its bargaining position. That is to
understand § 1113 as the functional equivalent of the major dispute resolution procedures of the
RLA. We submit that the Court should therefore recognize, just as every court to have
considered the question under the NLRA has held, that rejection or modification of a CBA,
followed by an employer’s unilateral imposition of terms and conditions, triggers the right to
strike on the part of employees.
Moreover, if the CWA were to strike, it would do so specifically in order to “maintainâ€
the collective bargaining agreement, as required under Section 2, First of the RLA, 45 U.S.C. §
152, First, not to undermine it. RLA Section 2, First provides: “It shall be the duty of all
carriers, their officers, agents and employees to exert every reasonable effort to make and
maintain agreements concerning rates of pay, rules and working conditions ….†Section 2, First
therefore supports the Union’s position that the Bankruptcy Court should leave all of the
provisions of the contract intact, exactly as the parties agreed to them.
In addition, Section 2, First is inextricably linked to other provisions of the RLA, which
provide for an orderly, but drawn out process for the negotiation and modification of collective
bargaining contracts. By obtaining the Bankruptcy Court’s approval of its modification of the
CWA contract, over the CWA’s objection, US Airways would be sidestepping the RLA’s
detailed procedures for contract formation and amendment. Having itself eschewed the RLA
processes, US Airways would have no equitable basis from which to contend that the RLA itself
prevents the Union and its members from striking on the theory that they are under a duty to
“make and maintain†their collective bargaining agreement, even though the Company is
purportedly at liberty to modify it.
37
Any attempt by US Airways to enjoin a strike, moreover, would be doomed to fail. As
the Supreme Court emphasized in Machinists v. Street, 367 U.S. 740, 772 (1961), “AThe Norris-
LaGuardia Act [29 U.S.C. ' 101 et seq.]. . .expresses a basic policy against the injunction of
activities of labor unions.†Prior to the enactment of the Norris- LaGuardia Act in 1932, federal
courts routinely issued injunctions against peaceful strike activity in spite of the fact that the
Clayton Act, 29 U.S.C. § 52, expressly forbade such injunctions. Burlington Northern R.R. v.
Maintenance of Way Employees, 481 U.S. 429, 437-39 (1987). Congress enacted the Norris-
LaGuardia Act in order to halt this pattern. Id. at 438.
In light of the fact that Congress rejected an amendment to the Norris-LaGuardia Act that
would have exempted the railroad industry from its reach, id. at 439-40, an exception to the antiinjunction
directive of the Norris-LaGuardia Act based on alleged violations of the RLA “is
necessarily a limited one.†Id. at 446. Its prohibitions, to be sure, are not absolute: “In certain
limited circumstances the Norris- LaGuardia Act does not prevent a court from enjoining
violations of the specific mandate of another labor statute.†Id. at 444. However, the Supreme
Court has cautioned:
Even when a violation of a specific mandate of the RLA is shown, “[c]ourts should
hesitate to fix upon the injunctive remedy ... unless that remedy alone can effectively
guard the plaintiff’s right.†Machinists, supra, 367 U.S., at 773, 81 S.Ct., at 1802.
Burlington Northern, supra, 481 U.S. at 446. The RLA contains no specific mandate against a
strike by airline employees whose collective bargaining agreement has been modified by a
Bankruptcy Court. The Norris-LaGuardia Act thus adds another layer of protection to the right
of airline employees to match their employer’s self- help in securing the modification of their
agreement with corresponding self-help actions in support of their agreement.
38
CONCLUSION
For the foregoing reasons, CWA respectfully requests that the Court refer the matter for
arbitration before the US Airways-CWA System Board of Adjustment, or, in the alternative, that
this Court dismiss or deny US Airways’ Motion to modify its collective bargaining agreement
with CWA pursuant to Section 1113(e).
Respectfully submitted,
____/s/ Daniel M. Katz_____________
Daniel M. Katz (VSB # 18022)
KATZ & RANZMAN, P.C.
1015 18th Street, N.W., Suite 801
Washington, D.C. 20036
(202) 659-4656 (Telephone)
(202) 659-3145 (Facsimile)
Attorney for the Communications Workers
of America, AFL-CIO
Daniel M. Katz (VSB # 18022)
KATZ & RANZMAN, P.C.
1015 18th Street, N.W., Suite 801
Washington, D.C. 20036
(202) 659-4656 (Telephone)
(202) 659-3145 (Facsimile)
Attorney for the Communications Workers
The reference to “work slow-downs or other service disruptions,â€
moreover, apparently constitutes an attempt to interfere with CWA’s right to engage in self-help
guaranteed under the RLA. As we demonstrate, infra, should the Court impose contractual
modifications to which CWA has not agreed, CWA would be free, under the RLA, to engage in
self-help and strike. The Norris- LaGuardia Act, 29 U.S.C. § 101, forbids the issuance of
injunctions against such lawful strikes. The Company’s proposal relating to outsourcing appears
designed to penalize the CWA and its members for exercising their right to engage in lawful
strike activities. Any court order embodying such a provision would therefore run afoul of the
Norris-LaGuardia Act.
Under the NLRA, unions retain the right to resort to self- help in support of their
bargaining positions upon bankruptcy court modification of their collective bargaining contracts
pursuant to § 1113. Crowe & Assoc., Inc. v. Bricklayers Local No. 2, 713 F.2d 211 (6th Cir.
1983) (vacating injunction against strike called to back up union’s demand that debtor pay
12 It is noteworthy that the carrier never even raised the issue in the hotly contested Continental Airlines
bankruptcy, in which all of the carrier’s unionized work groups went on strike when the airline repudiated its
collective bargaining contracts. See In re Continental Airlines Corp., 901 F.2d 1259 (5th Cir. 1990); ALPA v.
O’Neill, 499 U.S. 65 (1991). Nor did the courts issue an injunction against the pilots of the bankrupt Eastern
Airlines for engaging in a sympathy strike. Although the pilots’ contract was not rejected pursuant to Section 1113,
the strike was held lawful. Eastern Airlines, Inc. v. ALPA, 1989 WL 205343 (11th Cir.); IAM v. Eastern Airlines,
Inc., 121 B.R. 428, 431 n. 3 (S.D.N.Y. 1990), affirmed, 923 F.2d 26, 27 (2d Cir. 1991).
33
money into union pension fund); Briggs Transp. Co. v. Teamsters, 739 F.2d 341 (8th Cir.), cert.
denied, 469 U.S. 917 (1984) (strike to protest modification of collective bargaining agreement is
labor dispute that cannot be enjoined due to Norris LaGuardia Act, 29 U.S.C. § 101); In re
Petrusch, 667 F.2d 297 (2d Cir. 1981); In re Third Ave. Transit Corp. v. Quill, 192 F.2d 971, 973
(2d Cir. 1951); In re Kentucky Truck Sales, Inc., 52 B.R. 797, 806 (Bankr. W.D. Ky. 1985). See
also Teamsters v. IML Freight, Inc., 789 F.2d 1460 (10th Cir. 1986) (reversing and remanding
order approving rejection because bankruptcy court did not consider, inter alia, the likelihood
that the employees would strike). The Company does not contend otherwise, instead ignoring
the issue on the apparent assumption that airline employees should have fewer rights to respond
to the abrogation or modification of their collective bargaining contracts under § 1113 than
trucking or manufacturing workers.
To be sure, the RLA is a statute designed to deter premature resort by employers or
unions to self- help, and to encourage the parties to resolve their bargaining impasses by utilizing
mediation and voluntary arbitration, as opposed to strikes and lock-outs. So, too, however, is the
NLRA, which asserts as its first finding, in 29 U.S.C. § 151: “The denial by some employers of
the right of employees to organize and the refusal by some employers to accept the procedure of
collective bargaining lead to strikes and other forms of industrial strife or unrest, which have the
intent or the necessary effect of burdening or obstructing commerce. . . .†Akin to the findings
and declarations of policy in the RLA, the NLRA further states as a declaration of national labor
policy in 29 U.S.C. § 171 a and B that:
(a) sound and stable industrial peace and the advancement of the general
welfare, health, and safety of the Nation and of the best interests of employers and
employees can most satisfactorily be secured by the settlement of issues between
employers and employees through the processes of conference and collective
bargaining between employers and the representatives of their employees;
34
b- the settlement of issues between employers and employees through
collective bargaining may be advanced by making available full and adequate
governmental facilities for conciliation, mediation, and voluntary arbitration to aid
and encourage employers and the representatives of their employees to reach and
maintain agreements concerning rates of pay, hours, and working conditions, and
to make all reasonable efforts to settle their differences by mutual agreement
reached through conferences and collective bargaining or by such methods as may
be provided for in any applicable agreement for the settlement of disputes. . . .
Thus, the RLA and the NLRA do not differ significantly on the primary point on which we
expect the Company to rely.
What distinguishes the RLA from the NLRA in this regard is not the overall aim of the
legislation, but rather the means by which that aim is realized. Under the NLRA, by and large,
the obligation of a union not to strike, and the obligation of an employer not to resort to self-help,
is created by the parties' contract, as interpreted in light of the aims of the statute. See Mastro
Plastics Corp. v. National Labor Relations Board, 350 U.S. 270, 280-83 (1956). Under the
RLA, the restriction against self- help dur ing the term of a contract is written expressly into the
statute. At the same time, the RLA contemplates that, once the parties have entered into a
collective bargaining relationship, that relationship continues indefinitely; that is, RLA contracts,
unlike NLRA contracts, do not have fixed terms, but rather come up for amendment periodically,
and remain in effect until amended. See, e.g., Bhd. of Ry. and S.S. Clerks v. Florida East Coast
Ry. Co., 384 U.S. 238 (1966) (contract terms that the employer did not specifically seek to
modify during collective bargaining negotiations continue in effect); Trans World Airlines v.
Indep. Fed’n of Flight Attendants, 809 F.2d 483 (8th Cir. 1987) (same), aff’d mem. by an equally
divided Court, 485 U.S. 175 (1988). And, it is against this backdrop that the RLA’s regulation of
employer and union self-help operate.
35
Before unilaterally changing the terms and conditions of employment described in a
collective bargaining agreement, a carrier must follow the detailed procedures specified in the
RLA for amending such an agreement. Section 2, Seventh of the RLA, 45 U.S.C. § 152,
Seventh, provides: “No carrier, its officers or age nts shall change the rates of pay, rules, or
working conditions of its employees, as a class as embodied in agreements except in the manner
prescribed in such agreements or in section 156 of this title.†See, e.g., RLA Section 6, 45
U.S.C. § 156, concerning written notice of the change. See also Brotherhood of Railroad
Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 378 (1969) (summarizing the Act’s major
dispute resolution procedures). As the Supreme Court held in Brotherhood of Railway and
Steamship Clerks v. Florida East Coast Ry., 384 U.S. 238, 247 (1966), “The processes of
bargaining and mediation called for by the Act would indeed become a sham if a carrier could
unilaterally achieve what the Act requires be done by the other orderly procedures.â€
The significance of the RLA’s major dispute resolution procedures for present purposes
is this: The statute contemplates that a CBA, once entered into, does not expire on its own
terms, thus provid ing a trade-off between the right to self- help, on the one hand, and the stability
afforded by the continuing agreement, on the other. The RLA endeavors to secure this balance
by mandating a series of specified procedures before permitting an employer unilaterally to
impose changed terms and conditions on its employees or allowing a union to call a strike in
order to pressure an employer to agree to terms and conditions more favorable to employees.
Section 1113 disrupts this regime by allowing an employer, with Bankrup tcy Court approval, to
reject or modify a CBA without regard to RLA procedures. Thus, § 1113, like the RLA itself,
creates a process—albeit a comparatively accelerated process—for arriving at an impasse and
allowing employer self- help. There is accordingly only one logical way to reconcile the RLA
36
and the Bankruptcy Code, and to prevent the unfair consequences of permitting only one
collective bargaining party to engage in self- help in support of its bargaining position. That is to
understand § 1113 as the functional equivalent of the major dispute resolution procedures of the
RLA. We submit that the Court should therefore recognize, just as every court to have
considered the question under the NLRA has held, that rejection or modification of a CBA,
followed by an employer’s unilateral imposition of terms and conditions, triggers the right to
strike on the part of employees.
Moreover, if the CWA were to strike, it would do so specifically in order to “maintainâ€
the collective bargaining agreement, as required under Section 2, First of the RLA, 45 U.S.C. §
152, First, not to undermine it. RLA Section 2, First provides: “It shall be the duty of all
carriers, their officers, agents and employees to exert every reasonable effort to make and
maintain agreements concerning rates of pay, rules and working conditions ….†Section 2, First
therefore supports the Union’s position that the Bankruptcy Court should leave all of the
provisions of the contract intact, exactly as the parties agreed to them.
In addition, Section 2, First is inextricably linked to other provisions of the RLA, which
provide for an orderly, but drawn out process for the negotiation and modification of collective
bargaining contracts. By obtaining the Bankruptcy Court’s approval of its modification of the
CWA contract, over the CWA’s objection, US Airways would be sidestepping the RLA’s
detailed procedures for contract formation and amendment. Having itself eschewed the RLA
processes, US Airways would have no equitable basis from which to contend that the RLA itself
prevents the Union and its members from striking on the theory that they are under a duty to
“make and maintain†their collective bargaining agreement, even though the Company is
purportedly at liberty to modify it.
37
Any attempt by US Airways to enjoin a strike, moreover, would be doomed to fail. As
the Supreme Court emphasized in Machinists v. Street, 367 U.S. 740, 772 (1961), “AThe Norris-
LaGuardia Act [29 U.S.C. ' 101 et seq.]. . .expresses a basic policy against the injunction of
activities of labor unions.†Prior to the enactment of the Norris- LaGuardia Act in 1932, federal
courts routinely issued injunctions against peaceful strike activity in spite of the fact that the
Clayton Act, 29 U.S.C. § 52, expressly forbade such injunctions. Burlington Northern R.R. v.
Maintenance of Way Employees, 481 U.S. 429, 437-39 (1987). Congress enacted the Norris-
LaGuardia Act in order to halt this pattern. Id. at 438.
In light of the fact that Congress rejected an amendment to the Norris-LaGuardia Act that
would have exempted the railroad industry from its reach, id. at 439-40, an exception to the antiinjunction
directive of the Norris-LaGuardia Act based on alleged violations of the RLA “is
necessarily a limited one.†Id. at 446. Its prohibitions, to be sure, are not absolute: “In certain
limited circumstances the Norris- LaGuardia Act does not prevent a court from enjoining
violations of the specific mandate of another labor statute.†Id. at 444. However, the Supreme
Court has cautioned:
Even when a violation of a specific mandate of the RLA is shown, “[c]ourts should
hesitate to fix upon the injunctive remedy ... unless that remedy alone can effectively
guard the plaintiff’s right.†Machinists, supra, 367 U.S., at 773, 81 S.Ct., at 1802.
Burlington Northern, supra, 481 U.S. at 446. The RLA contains no specific mandate against a
strike by airline employees whose collective bargaining agreement has been modified by a
Bankruptcy Court. The Norris-LaGuardia Act thus adds another layer of protection to the right
of airline employees to match their employer’s self- help in securing the modification of their
agreement with corresponding self-help actions in support of their agreement.
38
CONCLUSION
For the foregoing reasons, CWA respectfully requests that the Court refer the matter for
arbitration before the US Airways-CWA System Board of Adjustment, or, in the alternative, that
this Court dismiss or deny US Airways’ Motion to modify its collective bargaining agreement
with CWA pursuant to Section 1113(e).
Respectfully submitted,
____/s/ Daniel M. Katz_____________
Daniel M. Katz (VSB # 18022)
KATZ & RANZMAN, P.C.
1015 18th Street, N.W., Suite 801
Washington, D.C. 20036
(202) 659-4656 (Telephone)
(202) 659-3145 (Facsimile)
Attorney for the Communications Workers
of America, AFL-CIO
h34r:
